NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0012n.06
No. 08-6528
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jan 06, 2010
LEONARD GREEN, Clerk
TIMOTHY PARSONS, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF KENTUCKY
FEDEX CORPORATION, )
)
Defendant-Appellee. ) OPINION
)
Before: GRIFFIN and KETHLEDGE, Circuit Judges; and CARR, District Judge.*
JAMES G. CARR, DISTRICT JUDGE. This is a diversity employment case arising from
the discharge of plaintiff Timothy Parsons from his position as a courier at the Huntington, West
Virginia station of the defendant Federal Express Corporation (FedEx). Plaintiff asserts three causes
of action against FedEx: 1) defamation; 2) retaliatory discharge; and 3) intentional infliction of
emotional distress.
Pending is an appeal from an order granting summary judgment in favor of defendant and
against plaintiff on all claims.
For the reasons that follow, we AFFIRM the district court’s grant of summary judgment.
*
The Honorable James G. Carr, Chief Judge of the Northern District of Ohio, sitting by
designation.
Background
FedEx employed Parsons as a courier from November 11, 1996, to March 20, 2006, at its
Huntington, West Virginia station. Throughout the Summer of 2005, Parsons complained to
management that packages were disappearing from trucks and reappearing days later. He also claims
that he saw employees opening packages without management approval.
On September 7, 2005, FedEx suspended Parsons after discovery of an opened package and
pornographic material in the truck he usually drove. On the same day, FedEx received a complaint
from a customer that several of the customer’s prescription narcotics shipments had been replaced
with baby aspirin.
Consistent with FedEx policies, the company, while it investigated the customer’s complaint,
placed Parsons on investigative suspension. Though FedEx questioned other employees about the
package, it only suspended Parsons. Unable to determine responsibility for the opened package and
pornography, FedEx reinstated Parsons.
During the investigation, Parsons informed FedEx’s Senior Security Specialist, Helmut
Hagan, that he had, at one point, been taking prescription narcotics. Consistent with FedEx policies,
Hagan notified management of this fact.
On receiving notice of Parsons’ use of narcotics, and again consistent with company policies,
a Medical Review Officer began an evaluation of Parsons. The evaluation included a request for
medical records pertaining to prescription narcotic use.
Pending a medical examination relating to his prior use of prescription narcotics, Parsons lost
his Department of Transportation (DOT) certification. Plaintiff claims that management had been
previously aware of this drug use, but had continued to let him make deliveries.
2
Because his disqualification from driving involved medical issues, Parsons received
paperwork to apply for short term disability.1 The Medical Review Officer ultimately cleared
Parsons to return to work. FedEx reinstated him and he returned to work.
FedEx policy bans suspended employees from entering the workplace without prior approval
of a manager. While under suspension, Parsons entered the station without permission. He received
a warning letter for failure to follow management orders.2
FedEx also has a policy that the details of an investigation remain confidential.3 Parsons filed
a series of internal EEO complaints regarding the scope and nature of this initial investigation.
Parsons returned to work on or about December 19, 2005. On January 4, 2006, FedEx
transferred Parsons to a new route because a customer had complained that Parsons had insinuated
he was going to blow up the customer’s business.
Parsons had difficulty delivering packages on the new route. He entered “DEX 03” codes on
twenty-six packages and returned them to the station.
1
Parsons alleges that the HCMP manager for FedEx threatened him with disciplinary action if he did
not knowingly falsify his medical leave documents. Parson fails, however, to submit any admissible
evidence, aside from his own affidavit, supporting this allegation.
2
Parsons alleges that he had to enter the station without management approval because his direct
manager intentionally attempted to avoid contact with him. Parsons, however, fails to submit any
admissible evidence, aside from his own deposition, to support his belief that the manager
intentionally avoided him.
3
Parsons alleges that the details of the investigation were common knowledge among the employees
of the station. He also alleges that FedEx shared the details of the investigation with people outside
the station. He has not, however, submitted any admissible evidence, aside from his own affidavit,
supporting these allegations. Parsons’ affidavit relies on hearsay and fails to set forth the hearsay
statements with sufficient specificity to show a genuine issue for trial.
3
The DEX 03 code indicates the package is undeliverable due to a customer addressing error.
FedEx determined that this code was incorrectly entered on twenty-two of the twenty-six returned
packages. It again placed Parsons on paid leave.
During the ensuing investigation, Parsons admitted to placing the DEX 03 code on eleven
packages he had not attempted to deliver. Parsons understood he was to use that code only when a
package has an incorrect address.
FedEx terminated Parsons on March 20, 2006. It asserts that it did so because Parsons
falsified company documents. This termination occurred after Parsons had filed additional EEO
complaints and sought legal counsel.
On February 23, 2006, Parsons filed a complaint in the United States District Court for the
Eastern District of Kentucky. On December 28, 2007, FedEx filed a motion for summary judgment.
The district court granted FedEx’s motion for summary judgment and dismissed the case with
prejudice. The district court dismissed Parsons’ motion for reconsideration on November 21, 2008.
Parsons filed a timely appeal.
Discussion
A. Jurisdiction
The district court had jurisdiction in this case under 28 U.S.C. § 1332, based on diversity of
citizenship and an amount in controversy exceeding $75,000.
This Court has jurisdiction over the plaintiff's appeal of the district court's final order under
28 U.S.C. § 1291. The trial court issued a final decision on defendant’s motion for summary
judgment on September 30, 2008, and on plaintiff’s motion for reconsideration on November 21,
2008.
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B. Standard of Review
This Court reviews a district court's grant of summary judgment de novo. Hinchman v.
Moore, 312 F.3d 198, 201 (6th Cir. 2002).
A party is entitled to summary judgment on a motion under Fed. R. Civ. P. 56 where the
opposing party fails to show the existence of an essential element for which that party bears the
burden of proof. Celotex Corp. v. Cartrett, 477 U.S. 317, 322 (1986). The movant must initially
show the absence of a genuine issue of material fact. Id. at 323.
Once the movant meets that initial burden, the “burden shifts to the nonmoving party [to] set
forth specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)). Rule 56(e) “requires the nonmoving party to
go beyond the [unverified] pleadings” and submit admissible evidence supporting its position.
Celotex, supra, 477 U.S. at 324.
In deciding a motion for summary judgment, a court accepts the opponent’s evidence as true
and construes all evidence in the opponent’s favor. Eastman Kodak Co. v. Image Tech. Servs., Inc.,
504 U.S. 451, 456 (1992). The movant can prevail only if the materials offered in support of the
motion show there is no genuine issue of a material fact. Celotex, supra, 477 U.S. at 323.
C. Procedural Issues
Parsons argues that the district court erred in only considering the evidence referenced in the
parties’ motions before granting Fedex’s motion for summary judgment. He contends that a district
court must consider all the evidence that exists in record before making a summary judgment
determination. FedEx asserts that this is an incorrect reading of Fed. R. Civ. P. 56. We agree with
FedEx.
5
A district court need only consider the evidence presented to it when considering a motion
for summary judgment, regardless of whether other potentially relevant evidence exists somewhere
in the record. Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 379 (6th Cir. 2007). A district court
has no “‘duty to sift through the record in search of evidence to support a party’s opposition to
summary judgment.’” Id. (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 916 n.7 (5th
Cir.1992)). Thus, “[r]ule 56 allocates that duty to the opponent of the motion, who is required to
point out the evidence, albeit evidence that is already in the record, that creates an issue of fact.”
Williamson, supra, 481 F.3d at 379 (quoting Skotak, supra, 953 F.2d at 916 n.7).
Parsons alleges that the 2007 revision of Rule 56 mandates district court consideration of
Rule 26 initial disclosures. Parsons is correct that Rule 56 now requires us to consider both
“discovery and disclosure materials.” Fed. R. Civ. P. 56 (c) (2009) (“The judgment sought shall be
rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact”) (emphasis added).4
We decline, however, to accept Parsons’ second invitation to hold that this amendment
requires district courts to search the record for relevant evidence, including that contained in
disclosure materials. The words “on file” do not require the court to comb the record for evidence.
See Williamson, supra, 481 F.3d at 379. The fact that disclosure materials are now included in Rule
56 does not change that.
We find, therefore, that the district court did not err in only considering the evidence placed
before it by the parties on the motion for summary judgment.
4
Before the 2007 amendments, Rule 56(c) did not include “disclosure materials” in its list of materials
a court could consider in ruling on an summary judgment motion.
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D. Substantive Claims
1. Defamation
In West Virginia,5 the elements of defamation are: “(1) defamatory statements; (2) a
nonprivileged communication to a third party; (3) falsity; (4) reference to the plaintiff; (5) at least
negligence on the part of the publisher; and (6) resulting injury.” Bine v. Owens, 542 S.E.2d 842,
846 (W.Va. 2000). Summary judgment is appropriate if the nonmoving party fails to make a
sufficient showing as to any one element, regardless of whether there are genuine issues of material
fact regarding other elements. Belcher v. Wal-Mart Stores, Inc., 568 S.E.2d 19, 26 (W.Va. 2002).
In this case, the first two elements are at issue, namely: 1) whether defendants made
defamatory statements; and 2) whether those statements were made in nonprivileged
communications to a third party.
The district court concluded that Parsons failed to produce sufficient evidence to support his
allegations as to either element. Because we agree that Parsons failed to produce sufficient evidence
to support his allegation that potentially defamatory statements were made in nonprivileged
communications to third parties, we need not determine whether the statements were, in fact,
defamatory.
To sustain a defamation claim, the defamatory statement must have been made “to a third
party who did not have a reasonable right to know.” Bine, supra, 542 S.E.2d at 846. “Unless the
defamatory matter is communicated to a third person there has been no diminution of reputation.”
Belcher, supra, 568 S.E.2d at 27 (quoting Crain v. Lightner,364 S.E.2d 778, 785 (W.Va. 1987)).
5
The parties do not dispute that West Virginia substantive law applies to this case.
7
Parsons alleges that people told him they had heard of his prior legal use of prescribed
narcotics from Sam Marcum and that Sam Marcum had heard from Brenda Hargis. He also alleges
that his fellow coworkers told him that FedEx management was publicly stating that Parsons had
done the things for which he was being investigated.
These statements are offered for the truth of the matter asserted and are hearsay. There is,
accordingly, no admissible evidence supporting plaintiff’s claim of improper disclosure of the
allegedly defamatory information. We, therefore, affirm the district court on this count.
2. Retaliatory Discharge
The West Virginia Supreme Court distinguishes claims of retaliatory discharge claim and
Intentional Infliction of Emotional Distress [IIED]:
when the employee’s distress results from the fact of his discharge-e.g., the
embarrassment and financial loss stemming from the plaintiff’s firing-rather than
from any improper conduct on the part of the employer in effecting the discharge,
then no claim for intentional infliction of emotional distress can attach. When,
however, the employee’s distress results from the outrageous manner by which the
employer effected the discharge, the employee may recover under the tort of outrage.
In other words, the wrongful discharge depends solely on the validity of the
employer’s motivation or reason for the discharge.
Dzinglski v. Weirton Steel Corporation, 445 S.E.2d 219, 226 (W.Va. 1994).
To succeed on a retaliatory discharge claim, an employee must prove by a preponderance of
the evidence that: 1) “the complainant engaged in protected activity”; 2) “complainant’s employer
was aware of the protected activities”; 3) “complainant was subsequently discharged”; and 4) that,
“absent other evidence tending to establish a retaliatory motivation . . . complainant’s discharge
followed his or her protected activities within such period of time that the court can infer retaliatory
motivation.” Erps v. West Virginia Human Rights Comm’n, 680 S.E.2d 371, 384-85 (W.Va. 2009).
8
Once plaintiff establishes a prima facie case of retaliatory discharge, the burden shifts to the
defendants to rebut the presumption. Id. If defendants produce evidence to rebut the presumption,
the burden remains with plaintiff to prove that the rationale given by the defendants was merely
pretextual. Id. Plaintiff must demonstrate that “‘the proffered reason was not the true reason for the
employment decision.’” Freeman v. Fayette County Bd. of Educ., 599 S.E.2d 695, 701 (W.Va.
2004) (quoting Tex. Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
Parsons claims that FedEx fired him in retaliation for complaining about the disappearance
of controlled substances from his truck, refusing to commit insurance fraud, and filing EEO
complaints.6
FedEx came forward with evidence of a legitimate, nondiscriminatory reason for terminating
the plaintiff: namely, that he – as he himself admitted – falsified company documents. The FedEx
People Manual, No. 2.5, specifies that falsification of company documents may result in termination.
Parsons has failed to produce evidence sufficient to create a genuine issue of material fact
as to whether FedEx’s stated reason is pretextual. He simply asserts in a conclusory manner, and
without a foundation in admissible evidence, that all employees misuse the codes in the same
manner. Unsupported speculation cannot overcome a motion for summary judgment. Parson’s
claim fails for lack of proof. Therefore, we affirm the grant of summary judgment on this claim.
3. Intentional Infliction of Emotional Distress
To prevail on an IIED claim, a plaintiff must prove: 1) “the defendant’s conduct was
atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency”; 2) “the
6
We assume, arguendo, that Parsons can establish a prima facie case.
9
defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain
or substantially certain emotional distress would result from his conduct”; 3) “the actions of the
defendant caused the plaintiff to suffer emotional distress”; and 4) “the emotional distress suffered
by the plaintiff was so severe that no reasonable person could be expected to endure it.” Hatfield
v. Health Management Associates of West Virginia, 672 S.E.2d 395, 404 (W.Va. 2004). Liability
for IIED only arises if the defendant’s conduct is found to be outrageous. Dzinglski, supra, 445
S.E.2d at 225.
Parsons contends that FedEx went beyond the proper scope of investigation, the details of
the investigation were common knowledge, and a desire to punish him for reporting breaches of
company policy motivated his termination.
West Virginia courts have declined to find similar conduct outrageous. See id. at
227(holding that defendant’s conduct was not outrageous when it suspended the plaintiff with pay
pending the outcome of the investigation, conducted an internal audit, interviewed company
employees, prepared an internal memoranda setting forth the results of the interviews and audit, and
held private meetings with plaintiff to apprise him of the allegations and afford him the opportunity
to respond); see also Hines v. Hills, 445 S.E.2d 385, 390 (W.Va. 1994) (holding that prosecuting an
employee instead of simply discharging her does not rise to level of actionable outrageousness).
Parsons asserts that the district court’s reliance on Dzinglski is misplaced. We disagree.
Parsons argues that we should disregard Dzinglski for the following reasons: 1) Dzinglski had been
directly accused of misconduct prior to the investigation; 2) the company in Dzinglski had not shared
details of the investigation with other employees; 3) the actions taken during the investigation in
Dzinglski were related to the purpose of the investigation; and 4) Dzinglski did not file a formal
10
complaint within the company that the investigation was being conducted counter to corporate
policy.
Parsons’ first and fourth reasons are irrelevant, as they go to the rationale for an investigation
(and termination), as opposed to the means of effecting the investigation. See Hosaflook v.
Consolidation Coal Co., 497 S.E.2d 174, 185 (W.Va. 1997). Parsons’ second reason is foreclosed
by his failure, as already noted, to put forth evidence other than his own conclusory and speculative
allegations regarding communications to third parties.
Finally, Parsons has not provided the court with any evidence that the actions taken during
the investigation in this case were less related to the purpose of the investigation than in Dzinglski.
In fact, as the district court noted,
Plaintiff conceded that Defendant was warranted in conducting an internal
investigation regarding the opening of packages of pornographic material located in
the truck. Plaintiff also admitted that Defendant has a legitimate need to investigate
alleged drug use by its employees. Further, Plaintiff acknowledged that placing him
on paid leave pending the investigation is consistent with company policy. Plaintiff
also recognizes that transferring a driver's route in response to a customer complaint
is not unreasonable. Finally, the record shows that during the investigation,
Defendant interviewed employees and gave Plaintiff an opportunity to present his
side of the story. (internal citations omitted).
Parsons v. Federal Exp. Corp., 2008 WL 4463759, *4 (E.D.Ky. 2008).
For the foregoing reasons, and in light of Dzinglski, we affirm the decision of the district
court that FedEx is entitled to summary judgment with regard to Parsons’ intentional infliction of
emotional distress claim.
Conclusion
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment.
11